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Miles per gallon. Volume in a cereal box. Profit-and-loss statements, SATs, return on investment. As a society, we measure. We measure success and failure. We measure output and outcome. But we rarely measure justice or the court system charged with producing it. Over time, the pat response to measurement efforts has been that it simply cannot be done. However, over that same period of time, business leaders have documented that measurements control outcome-we get what we measure. I recently resigned my decade-long post as a justice on the Colorado Supreme Court to found the Institute for the Advancement of the American Legal System at the University of Denver. At the institute, we’re committed to creating a legal system that serves all its citizens. The use of accurate and adequate court measurements is the first step toward that crucial goal. If we cannot measure “justice,” because it is a subjective conclusion, we can measure fairness, efficiency, effectiveness, access and clarity. We can be reasonably certain that if we meet those basic standards, we achieve justice in its broadest and best sense. The court system is not now efficient, effective and fair. The truth is that the system is failing the public-to a greater or lesser degree, depending upon your perspective. Courts are inaccessible, expensive, inconsistent and inefficient. Many of our elected leaders are also failing the public. They do not discuss how to improve the courts or the quality of judges. Instead, they parry politically charged language of judicial activism. We need to improve the legal system. We can make those improvements-but not by grandstanding. Let me be clear: I am no fan of judicial activism. Judges should not make partisan decisions that are conclusion-oriented. Judges should be making impartial decisions, based upon the facts and law of a case. But that is a measurable goal. Rather than decrying “activism,” the national debate needs to focus on how to design appropriate measurements, apply them and use them to foster improvement. In the 1960s, judges began to realize that once a case is filed in court it is not just the parties’ business, it is the public’s business. It deserves a just, economical and expeditious resolution. Judges began to accept that at least efficiency is measurable in the form of time and resources spent on each case. But accountability means more than just efficiency. Measurement criteria Global companies, such as the World Bank, regularly measure judicial systems in countries as they gauge whether or not to do business there. They measure criteria such as independence and impartiality, accountability, integrity and judicial training. National groups aimed at improving the system have also begun to develop and publish comprehensive and useful standards. The National Center for State Courts, the research and development arm of the state court system, developed comprehensive trial and appellate court performance standards. There are 10 measurement criteria for trial judges that provide a clear picture of how access and fairness, efficiencies, trial date certainties, data integrity, collection of monetary fines, use of jurors, court employee satisfaction and the internal cost of resources allocated to each case can be accurately and fairly measured. The American Bar Association recently published guidelines designed for the evaluation of state court judges. Those guidelines focus on legal ability, integrity and impartiality, communication skills, professionalism and temperament, and administrative functioning. Various states already evaluate judges and publish the results of those evaluations to voters-for retention or contested election purposes. As a veteran of one of those systems, I recognize that it is not perfect. The criteria need to be revisited, the information gathering needs to be revised and the ultimate evaluations need to be publicized more broadly. However, I absolutely believe in the process. The challenge is to avoid standards that invite application of the wrong criteria. For example, judges should be evaluated on the basis of their ability to provide due process in an efficient, effective manner-to render clear legally correct decisions, not politically correct decisions. Judges should not be looking over their shoulders to public opinion. They should be looking on their desks at the law and facts of each individual case. In order to be accountable to the electorate, those of us who have experience with and in the judicial branch must endorse standards of measurement and apply them. We need to stop the name-calling and hold court systems accountable for the right kind of progress. Courts need to be more effective, efficient and inexpensive-and, by the way, they need more resources to achieve those outcomes. Using legitimate measurements to quantify what society expects will cause courts to make positive change. Some good standards for measuring the relative success and failure of our courts and judges are already in use-but they are too inconsistently applied, rarely coupled with incentives, generally incomplete in analysis and data gathering, and not widely disseminated. We need work in this area. We need change. In founding the Institute for the Advancement of the American Legal System, I’ve staked my career on being a part of that constructive change. For example, the institute will be working on streamlining the rules of civil procedure and encouraging targeted, proactive case management by judges. Rebecca Kourlis is executive director of the Institute for the Advancement of the American Legal System at the University of Denver. Formerly, she served as a justice on the Colorado Supreme Court.

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